July 7, 2007

ADDED: My analysis of standing is at that link, but we're talking about it in the comments here. Marty Lederman was nice enough to comment and say he appreciated my analysis, so let's look at what he wrote about the case. He says that the standing analysis is "complicated -- real FedCourts inside baseball" and opines that ordinary people are unlikely to sit through the explanation.

This really is a problem with fedcourts doctrine. You have strange, alienating doctrine that prevents courts from doing what it seems that courts are for: deciding the case on the merits. Judges act as though they are carrying out some higher calling when they decline to act, and maybe they are, but if what they are doing is incomprehensible to people, they are likely to draw their conclusions about the quality of the case based on the outcome.

Lederman says that the Supreme Court's standing doctrine is "a mess" -- but that's mainly true because the Court is composed of some very different individuals, some of whom would never have adopted the constitutionalized 3-part injury-in-fact test in the first place and because the test must be applied in complex and varied fact settings, which has given the Court's swing voters room to affect outcomes in a pragmatic fashion. The mess could be cleaned up pretty easily by replacing a justice or two. Which way do you want it cleaned up? Would you rather have it kept a mess than cleaned up the way you don't like? If yes, then you should understand why we've got the mess.

Marty observes that whatever you might say about the injury to these plaintiffs, it can at least be said that the program they challenge is injuring someone, and it's a real, not a hypothetical controversy. The constitutional aspect of standing doctrine is a gloss on the Article III definition of "the Judicial Power" in terms of "cases" and "controversies," and Marty seems inclined to revive the way the Warren Court used to talk about standing doctrine. We definitely have a real controversy, so why stress the concrete and particularized injury to these plaintiffs? He blames the defendants for withholding the information about who the program has actually targeted: "What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits?"

I think the answer, for those who support the current standing doctrine, is that standing is required across the board, and you don't get to create exceptions to the requirements in individual instances where the case seems justified. Standing is a matter of the constitutional limit on judicial power, so nothing that the parties do can enlarge it. Even if the Executive Branch wanted the federal court to decide a case beyond the Article III judicial power they would have to decline. If Congress passed a statute granting jurisdiction beyond the judicial power, it would be unconstitutional. These constitutional limits on the courts' power are just as important as the limits on the executive power that you wish they would address.

That's the strong view of standing -- which goes along with a strict view of separation of powers. Not all the justices support the strong view all the time. I note that in Laidlaw, the case that Judge Gilmore relied on, Justice Scalia was forced to rail about this sort of thing in dissent (joined only by Justice Thomas).

And let me flag this new post by Patterico, which shows that Glenn Greenwald was wrong when he asserted that only the dissenting judge in the 6th Circuit case had anything to say about the substantive merits of the plaintiffs' claims. In fact, Judge Batchelder wrote that the plaintiffs failed to state a claim under Title III and FISA. As quoted by Patterico (who adds emphasis):

It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.

Patterico is right, but I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up. And Gibbons did well to refuse to join it.

I can't stand Greenwald's posturing about how all the judges who have reached the merits have found the program illegal. It's not surprising that the judges who are lax about standing also lean toward restricting the President's power in national security. These are both liberal positions. The judges who stop at the level of standing are the judges who would be most likely to find the program legal. So Glenn's point doesn't impress me. Patterico shows that Glenn is wrong. But ironically, Batchelder would look a whole lot better if Glenn were right.

32 comments:

So now do we start anew in this post, or continue in the previous? Since the other is already somewhat lengthy, I'll respond to the update here.

A couple of thoughts:

I think the comparison to Laidlaw is inapt, although I admit to finding that case quite difficult. There, if the river were being polluted by the defendant, it would presumably affect the plaintiffs in the manner they alleged. To make that case apply to the present case, it seems to me, the Laidlaw plaintiffs would have had to start with the local newspaper's accusation that a company was dumping pollutants into some watercourse, and gone in search of a river near their property, regardless of whether they could prove that particular watercourse was polluted or not.

Perhaps one reply to the observation that "[t]his is a frustrating bind, but why not resolve it in favor of empowering the court to address the merits of the case?" is to consider that in doing so, one weighs the structural constitution against the rights-bearing constitution. This is a point I'm addressing in round 2 of the standing symposium over at SF in the next couple of days, so I'm kind of getting ahead of myself here, but the point I'd make is that even if you assume that standing doctrine - Art. III or prudential - has the flexibility to be construed so as not to deny jurisdiction, I think it's important to remember that there are considerations on the other side of the leger. It should not automatically follow that where there's ambiguity, it should be resolved in fair of jurisidction.

As you've written before, in Bush v. Gore "Justice Breyer took the position that issues involving fundamental rights are more worthy of the Supreme Court's attention than the mere structural constitutional matters," Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court - Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508, 552 n.193 (2002), and although that's couched as a point about one opinion in one case, I think it's fair to say your description of Breyer's position there is a general summation of the legal liberal's general mindset, a point you also acknowledge (see id. at 555 ("Generally, the conservative side of the Court has been more enthusiastic about enforcing the structural parts of the Constitution, and the liberal Justices have been more enthusiastic about enforcing individual rights")). Standing is the only real check on the power of the judiciary, which I think when properly-invoked is exceedingly broad and deep (for example, I not only reject Garcia, I would be willing to consider - on a theoretical level, at least - court scrutiny of the spending clause). Precisely because courts are so powerful a gladiataor when called to the arena, it makes it all the more important, in my view, that said power be constrained to only come into play when properly invoked - which isn't to say that threshold doctrine ought to be boa-strictly construed, but it does caution against its otherwise unprincipled relaxation out of a desire to reach the merits (e.g. Flast).

This isn't to say that any and all ambiguity should be resolved against jurisdiction, only that even if one is a pragmatist rather than a formalist, there are pragmatic reasons to hesitate and to weigh competing interests before assuming jurisdiction. Justice Breyer is quite simply wrong to suggest that the rights-bearing constitution is more important than the structural constitution; indeed, the latter is at least as important, and quite possibly more so. As Justice Scalia pointed out many years ago, many constitutions contain soaring language about fundamental rights, but those rights have either withered on the vine or been stillborn for want of structures to enforce them:

"a bill of rights only has value if the other part of the Constitution, the part that really constitutes the organs of government, establishes a structure that is likely to preserve against the lust for human power, those liberties that the Bill of Rights expresses. If the people value those liberties the proper constitutional structure that Madison and the others thought likely results in their preservation even in the absence of the Bill of Rights. And where that structure does not exist, the mere recitation of the liberties will certainly not preserve them."

Ann's recent photographic focus demands a florid metaphor: the problem with Justice Breyer's approach is that it would preserve the bloom at the expense of the root. Ripping a flower from its moorings may make it easier - for a short while - to enjoy its appearence and smell, but it will rapidly therafter wither and die.

Finally, it should be remembered that standing is a check against one branch, but that branch it is not the entirety of the system. As Gahrie pointed out in a previous thread this week, in less than two years, this administration will pack up its stuff and walk out of office. If standing is not found here, the plaintiffs are no more left unable to seek redress than the Hein plaintiffs, if they cannot get it in the federal courts: they can seek to shut down the program the old fashioned way, by winning an election, meaning that the administration moving in and unpacking its stuff pulls the plug.

I deleted a post that accuse me rudely of admitting I was wrong about the district judge's opinion. I absolutely do not and I explain that plainly in the update. If you don't understand, read it again.

Ann Althouse, in the NYTimes, 8-23-2006 : "And, indeed, the president is not claiming he has powers outside of the Constitution. He isn't arguing that he's above the law. He's making an aggressive argument about the scope of his power under the law. It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal."

However, in fact, the DOJ didn't present any argument to Judge Taylor that the TSP was legal. And, in fact, it was quite presumptuous to state that the president's advisors had concluded that the TSP was legal. And, in fact, the DOJ did everything possible to prevent a review of the legality of the TSP. They even took the extraordinary step of decling to make an "agressive argument" or, indeed, any argument at all, when there were threatened with an MSJ. Instead, the DOJ remained silent and allowed the threatened MSJ to go forward.

Ben said..."[I]t was quite presumptuous to state that the president's advisors had concluded that the TSP was legal."

You misread the word "they," I think, in the statement that "[the President] has his advisers, and they've concluded that the program is legal" (emphasis added). You read "they" to refer only to the President's advisors, while the more natural reading in context is that the President and his advisors have so concluded. The former reading might bear the weight of the inference you rest on it (viz. that all the advisors have reached a conclusion), while the latter clearly does not, given the Preisdent's obvious seniority over any group including his advisors. It is unexceptional to conclude that the President, acting with (i.e. on the advice of) his advisors, concluded the program was legal, a fortiori since the alternative requires one to accuse the President of wilfully, consciously and systematically breaking the law. So stated, it becomes obvious why people who are animated by bitter hostility to this President would prefer an interpretation assuming his bad faith.

The balance of your assertions, I think, ignore the procedural posture of the case - you seem to forget that Taylor decided the case summarily, not after the opportunity for the full development of arguments in a trial. But even if it were otherwise, it is far from unreasonable to pursue a litigation strategy that focusses on threshold issues, if one believes that the plaintiffs clearly cannot meet that burden. That may not be wise, but nothing requires us to assume counsel will always pursue what seems the wisest litigation strategy to us.

Marty: Thanks. I'm about to read l'll the commentary and will start with yours.

Ben is pushing the argument, promoted by Glenn Greenwald in a blog post that was made as insulting to me as possible, that the district judge behaved well by refusing to treat the standing and state secrets issues in separate preliminary way. He was twittering with the giddy notion that the government had forfeited the opportunity to argue the case on the merits and it was just wonderful for the judge to trample headlong in a rush to decide as many substantive issues as possible in the most shockingly broad and summary fashion possible. Of course, I have no respect for Greenwald after that, and anyone who comments here as one of his followers is scarcely going to impress me.

I regret my disagreeable tone in the previous comment, and I understand why you took offense. That wasn't my intent. Perhaps we can agree to disagree with each other, without being more disagreeable than necessary.

Please lets discuss the merits of this.

Or not. It's your blog. I can't tell you what to do. If your conclusion that I'm unimpressive and unworthy of reply is unshakable, then that's that.

I found your your NYT op-ed in 2006 to be impressive and to be worthy of reply. I'm not disagreeing with your opinion of the sloppiness and tone of Judge Taylor's decision.

But how, if she found standing, could she have then decided the MSJ in any other way than she did?

Why was it that you wrote that Judge Taylor "needed to take seriously" an "aggressive argument" that wasn't presented to her?

Also, if the USDOJ declines to present an argument for legality, isn't it within the bounds of propriety to wonder whether they might have doubts about their argument for legality?

As we now know, but didn't know in 2006, some of the president's advisors did indeed have doubts about the legality of the so-called TSP.

a "subjective belief that the NSA might be intercepting their communications,"

As a non-lawyer [insert happy face here], it seems painfully obvious to me that the case had absolutely no merit. To sue because someone might be doing something that might be harmful is stretching credulity beyond the breaking point, and I do not understand why the case was even heard.

Legal arguments all too often seem to turn into mental masturbation fests, with quality measured by word count. One thing I like about Chief Justice Roberts is his penchant for making plain, to-the-point statements about the crux of a matter, something that probably cools all that opposing masturbatory ardor. And no one would have the temerity to complain that he is in any negative sense a simple man.

I'm not an attorney, but from what I read...can someone tell me if this is the basic crux of the decision:

Since the government won't tell someone whether they have been wiretapped...because they consider the information a "secret"...and since someone wouldn't know whether or not they've actually been wiretapped...(because no one will tell them)...they can't challenge the legality of the wiretapping?

*And if so...how would anyone ever know if they're actually being wiretapped...if the government won't tell them...and does anyone here really that most Americans believe or would accept this to be what our constitution demands?

It was the DC judge's refusal to allow the DOJ to address the threshold issue first -- without needing to brief the merits of the case -- that was her initial error in this case. If the plaintiff lacks standing, the defendant shouldn't be obliged to address the merits. Her refusal to allow the DOJ to brief the merits after she'd reached her conclusion on standing, was her second error. Yes, I understand that judges sometimes consolidate such issues to expedite matters, but there was no need to do so here. Given the significance of the issues, it made even more sense than usual to consider those issues in order. The judge seemed overly anxious to address the merits -- an impression the tone of her opinion only reinforced.

P. Rich said..."...it seems painfully obvious to me that the case had absolutely no merit. To sue because someone might be doing something that might be harmful is stretching credulity beyond the breaking point, and I do not understand why the case was even heard."

I understand your point, but disagree.

As an example; what if a corporation "might be doing something that might be harmful" to your family (lead based paint or chemicals polluting your drinking water)...would you consider the pursuit of the facts (via lawsuit) that would either prove or disprove whether it's happening..."without merit?"

Allow me to try to address your question. Yes, I think the crux of the objection many have against the (current) outcome of this case is that plaintiffs seem to be in a Catch 22 -- they only have standing to sue if they can demonstrate they were subject to surveillance AND the government does not have to tell them whether they where the subject of surveillance.

As to the question of whether or not most Americans would find this situation compatible with the Constitution, I don't know. There seems to be a sense that every governmental action is or ought to be subject to judicial review. I think that view is wrong, but I'm not sure a majority of my fellow citizens agree with me. (I'm quite sure that most attorneys do not.) Our society is increasingly legalistic. Even battlefield decisions are now vetted in real-time by attorneys.

However, while I'm sympathetic to the desire to have some recourse to the courts when you believe the government might be behaving illegally, sometimes such questions should NOT be addressed by the courts. Absent some real check on the judicial branch's power, the courts would rule the country. The standing doctrine, even if it is self-imposed, is a necessary break on judicial power.

When you say; "while I'm sympathetic to the desire to have some recourse to the courts when you believe the government might be behaving illegally, sometimes such questions should NOT be addressed by the courts"...exactly how else would someone find out if the government is "behaving illegally?"

'As an example; what if a corporation "might be doing something that might be harmful" to your family (lead based paint or chemicals polluting your drinking water)...would you consider the pursuit of the facts (via lawsuit) that would either prove or disprove whether it's happening..."without merit?" '

In a word, yes. It still seems to me that there must be some modicum of fact and relevancy (standing) on which the case can be brought. Otherwise, business and government would spend forever in court defending against pure supposition. And courts shouldn't use political leanings as a basis for relevancy determination or in deciding on a "case."

In your hypothetical, for example, the key question is, "What facts support your suspicion that contamination could be affecting your family?" If the answer is, "None. I just think it's possible." then a lawsuit would be totally frivolous.

When you say; "while I'm sympathetic to the desire to have some recourse to the courts when you believe the government might be behaving illegally, sometimes such questions should NOT be addressed by the courts"...exactly how else would someone find out if the government is "behaving illegally?"

The theoretical answer is sometimes you just aren't going to be able to learn the government has exceeded its authority. The practical answer is our government has never been good at keeping secrets. Administrations change every four to eight years. What will prevent the new administration from pointing out (and prosecuting) the errors of the past administration? Even while in power, most administrations cannot keep many secrets. The suit we've been discussing would not have been filed if the administration HAD been able to keep the TSP secret.

Seven Machos - It will be interesting to see just how concerned the left is for the privacy of communications between Peshawar and the United States if a Democrat becomes president.

I suspect they will of course shut up since they see civil rights, like feminism, as a clever political attack tool against the Non-Progressive Americans. They continue to honor Wilson, FDR, Truman, JFK, RFK, and LBJ as Gods on Earth (In LBJ's case only a near-God due to Vietnam) - despite their rampant wire-tapping activities and other "civil rights abuses".

We know the drill. Liberal professor, Democratic President that harasses underlings for sex gets a pass from the sisterhood - non-PC compliant professor or politician is on the receiving end of a firing campaign.

Attorney General RFK warrantlessly wiretaps Martin Luther King and demands he get rid of his Jewish Communist coterie loyal to the Soviets or RFK will have J. Edgar Hoover drop the drunken, commie-loving, multiple prostitute beating hammer on MLK - and he is still Saint Bobby to the Left.

When AG Ashcroft defends trying to find out who in AQ is calling who in the USA and liberals have the expected politically motivated shit-fit on "Herr Ashkkkroft".

All par for the course.

I see why SCOTUS determined standing was lacking. Despite the best attempts of the 3 Transnationalists on the Court to never let a little lack of standing interfere with what they think is the Court's absolute power over the other 2 branches, the states, and the American People.

Still, with 6 years of a global struggle with Islamoid radicals, it is hard to see why the ACLU and other seditious forces could not come up with a "true victim of precious terrorist rights being destroyed by warrantless communications monitoring - so all the Courts, including the ranting imbecile Judge Anna have done, is just kick the can down the road yet again until an actual "hurt party can be dredged up".

What if the president announced that he was proscribing a particular religion? If no one from that religion came forward to contest the president's implication that it is within his power to do so, all of us would be left implicitly accepting the claim. Furthermore, in the future another president could make a more explicit claim using the earlier action as precedent. In time people might come to accept it as something normally within the president's power.

I am naive (ignorant) about the legal arguments in the wiretapping case. There are complications having to do with domestic vs international activity and questions about just how immediate and critical the need is. That aside I am very jealous of my rights, freedoms, and liberties (isn't everyone?). If the president claims that it is within his power to conduct warrantless, intrusive surveilance on anyone anywhere, or even merely implies it, I would feel that I have standing to challenge such a claim, not because I was a target, but because his claim expands presidential power at the expense of my constitutionally guaranteed rights and liberties. Is that not a real harm to me? If someone says that a mere claim to power without action makes it moot I would say that a president's claim is much more than empty words. I can claim that I have the right and authority to conduct a full body cavity search on the vice president, but I don't have the power to make it happen. I could petition the courts to assist me in asserting my claimed right. The courts would tell me, rightly so, to take a hike. The president has power. He doesn't have to ask for anyone's assistance or permission in exercising that power. The constitution defines and limits the president's power. If he tries to unilaterally expand those definitions and limits it is everyones problem and we all have standing.

And here I always thought that the legislative process involved the passage of a bill in each house of Congress, followed by the president's signature or veto. And then the bill became law or it did not. NOW, I see that there are actually several other steps to the legislative process -- after the president's signature, then the lowest of the lowest federal district judge decides whether the bill becomes law, then a few appellate judges decide, then nine all-knowing, all-seeing divine judges on-high decide whether the bill becomes law.

Look, let's just abolish the executive and legislative branches and quit making everyone go through all these hoops before the supreme, unlimited, and omnipotent judiciary-for-life controls and rules over everything.

aquariid said..."What if the president announced that he was proscribing a particular religion? If no one from that religion came forward to contest the president's implication that it is within his power to do so, all of us would be left implicitly accepting the claim."

Two responses: First, it seems absolutely plain that if the President announced that he was proscribing a particular religion, there would be a race to the courtroom door, led by the ACLU, because every adherent of that religion would have standing to challenge the proscription under the free exercise clause. And second, even if that didn't happen, we would be left implicitly accepting the claim only until the next election, where - depending on how long the President had been in office - all of us would have the opportunity either to turf that President out of office or to choose a successor who would not continue the proscription. But I think the second point is purely hypothetical - it would be challenged in court, at least on free exercise grounds and probably separation of powers grounds, too.

"If the president claims that it is within his power to conduct warrantless, intrusive surveilance on anyone anywhere, or even merely implies it, I would feel that I have standing to challenge such a claim, not because I was a target, but because his claim expands presidential power at the expense of my constitutionally guaranteed rights and liberties. Is that not a real harm to me?"

It isn't an "injury" in the sense required for Article III standing, no.

...I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up.

I don't disagree. Batchelder should have declined to address the merits. However, as a very mild defense, it may have been that she knew the dissent would address the merits. In that context, it's understandable why Batchelder would have felt the need to talk about the merits.

A better approach may have been to have spent a paragraph or two on why judges should NOT address the merits when the plaintiff lacks standing. That would have made the dissent's discussion of the merits look worse. It would not have robbed the critics of the administration what they really wanted -- an opinion the administration had broken the law -- that could be used for political purposes.

DKWalser said..."[I]t may have been that she knew the dissent would address the merits. In that context, it's understandable why Batchelder would have felt the need to talk about the merits ... [although a] better approach may have been to have spent a paragraph or two on why judges should NOT address the merits when the plaintiff lacks standing. That would have made the dissent's discussion of the merits look worse."

I'm not sure that's necessarily a more effective approach. The dissent isn't obligated to accept the majority's conclusion that the plaintiffs lack standing as its starting premise, and could easily rebuff such an assertion by the majority with a footnote observing that while Gilman entirely agrees that "judges should not address the merits when the plaintiff lacks standing," that's irrelevant because he concludes that they do have standing.

What if the president announced that he was proscribing a particular religion? If no one from that religion came forward to contest the president's implication that it is within his power to do so, all of us would be left implicitly accepting the claim.

That's just another way of saying "suppose the President told a bunch of people to quit doing something and they all did so".

Wouldn't the answer to LOS's initial question arise if someone was actually charged by the government on the basis of wiretapped information? and that information would arise in discovery I presume.

Given the state of technology I have no doubt that it is possible that any and all of our private communications could be intercepted; similarly, our mail can be read very easily and our internet activities can be monitored. In short, privacy is certainly problematic in our society.

In addition to the legal reasons cited above for standing, the other protection we have is sheer volume of communications. It is simply not possible to monitor any and all communications.

That argument may not be compelling to civil libertarians, but I believe it has some merit. I could certainly see the legal system being overwhelmed if any citizen could bring suit based on suspicions of government intent alone.